Limping Lawsuits are Often Doomed

For years, Alberta courts were very reluctant to dismiss a lawsuit for delay (nonprosecution). That has now changed radically, partly because of the backlog of deserving lawsuits being actively pursued. Aiding that change is the Supreme Court's culture shift in civil and criminal cases toward faster litigation. The right to access the courts is conditional on not abusing that right. Plaintiffs should keep their suits moving along, and avoid delay. A plaintiff with a dilatory suit should not expect to meet an indulgent judge or master in chambers. See the Barlot case below.

Helped by direction from the Court of Appeal, the courts have largely stopped using technical reasons to dodge the drop-dead Rule 4.33. And most recent motions to dismiss under the more general Rule 4.31 on delay have succeeded too.

Quite a number of decisions about those two Rules have come out recently. To review them is beyond the scope of a blog. But here are points from two of the decisions, to illustrate the flavor of the court’s new approach.

The ultimate defence against dismissal for want of prosecution used to be shedding these crocodile tears: “I the counsel may be very guilty, but do not visit my sins upon my poor innocent client, who did not know that I was delaying for seven years.” The counsel or the client or both used so to snivel. But if the delay was long enough to dismiss the suit, how could the client just assume that everything was ticking along? Did he or she never ask his or her lawyer what was going on? More to the point, the Court of Appeal now points out that if the plaintiff and the defendant are both innocent of the delay, it is better that the plaintiff suffer than the defendant. The defendant was powerless, but the plaintiff had the right and duty to control and supervise his or her neglectful lawyer. See the Humphreys case below.

Any undue delay can trigger the general non-prosecution Rule, R. 4.31. There is no fixed minimum or safe period of time. The test is an inordinate shortfall from the speed of a reasonable litigant. And prejudice to the defendant from the delay can be of any kind. You never know when a witness is going to die or become incapacitated. After a few years, the chances of some witness moving and ceasing to be findable are considerable. Inordinate delay once again creates a presumption of grave prejudice, putting the onus on the plaintiff to disprove prejudice to the def. (That presumption is once again express in the Rule.) A suit 10 years old with some years still to go before trial, requires a detailed and compelling explanation for the delay. See the Humphreys case below.

Undue delay under that general R. 4.31 only needs to be more than minor or trivial, and big enough to give serious consequences. The prejudice to the defendant can be within the suit, such as loss of witnesses or records, or fading memories. (Reversing a number of past decisions, the Court of Appeal in the Humphreys case says that deteriorating memory is an undeniable fact, and a paper trail is not enough backup.) Or the prejudice can be outside the suit: effects harming health, reputation, or business interests (such as prejudice to funding). Reasons for the delay are relevant under this Rule (not the other Rule). But the longer the delay, the stronger must be the reason excusing the delay. See the Barlot case below.

The drop-dead Rule 4.33 of 3 years is designed to weed out and dismiss actions which are not really alive; it is a sort of limitation period. If the action did not significantly advance for 3 years, a motion to dismiss must be granted. Excuses or reasons or hardship are irrelevant. The Rule is mandatory. The advance must be real, not technical or nominal. An act that will advance one lawsuit substantially may have no significant benefit in another lawsuit. And starting to do something useful without completing it, is often not enough. Merely ordering an expert report is not enough. Not all offers to settle suffice. See the Barlot case, below.

The parties can agree on a delay and avoid these Rules (R 4.32), but that takes a lot of precision and writing and details. After the event the plaintiff often tries to rely upon a few words which are oral, vague, and totally insufficient. There is no duty on the defendant to say that he or she does not agree with the delay. See the Barlot case below.

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.